On the other hand, I have to admit I'm dismayed that Obama has already given up on the idea of prosecuting the people responsible for these war crimes. All the prattle about moving forward and not backward, a time for reflection and not retribution, is, well, just that: prattle. Prosecuting the torturers wouldn't be about "retribution"; it would be an act of reflection and consideration, bringing shameful crimes perpetrated in all our names to light and working through the consequences. "Reflection" is meaningless if it doesn't lead to action.
It's worth looking at all of these memos. Several commentators have already noted the unavoidable specter of Hannah Arendt's "banality of evil" thesis, her vision of Adolf Eichmann and other Nazi war criminals as not slavering diabolical fiends but as unimaginative, unreflective bureaucrats who murdered people from their desks because they couldn't imagine the concrete moral consequences of their document-typing and number-crunching. To them, mass murder was an abstract thing; they saw themselves as working with pens and paper, not with instruments of death. The bureaucratic jargon of the Bush-era torture memos just released are a thing to behold: atrocities recounted in the language of a corporate lawyer.
Via Glenn Greenwald, some excerpts from the memos:
One wonders just what has been redacted.
For a description of torture in living language, non-bureaucratic language, language that instead of being empty and mendacious and designed to sanitize or simplify or outright deny reality is meant to illuminate, evoke, and describe reality, let us turn to John Donne, speaking out against "stress positions" in a 1625 Easter sermon:
They therefore oppose God in his purpose of dignifying the body of man, first who violate, and mangle this body, which is the organ in which God breathes, and they also which pollute and defile this body, in which Christ Jesus is apparelled; and they likewise who prophane this body, which is the Holy Ghost, and the high Priest, inhabits, and consecrates.
Transgressors that put God’s organ out of tune, that discompose and tear the body of man with violence, are those inhuman persecutors who with racks and tortures and prisons and fires and exquisite inquisitions throw down the bodies of the true God’s servants to the idolatrous worship of their imaginary gods, that torture men into Hell and carry them through the inquisition into damnation. St Augustine moves a question, and institutes a disputation, and carries it somewhat problematically, whether torture be to be admitted at all, or no. That presents a fair probability which he says against it. We presume, says he, that an innocent man should accuse himself, by confession, in torture. And if an innocent man be able to do so, why should we not think that a guilty man, who shall save his life by holding his tongue in torture, should be able to do so?
And then, where is the use of torture? It is a slippery trial and uncertain (says Ulpian) to convince by torture. For many says (says St Augustine again) he that is yet but questioned, whether he be guilty or no, before that be known, is, without all question, miserably tortured. And whereas, many time, the passion of the Judge, and the covetousness of the Judge, and the ambition of the Judge, are calamities heavy enough upon a man that is accused. If the Judge knew that he were innocent, he should suffer nothing. If he knew he were guilty, he should not suffer torture. But because the Judge is ignorant and knows nothing.
Donne is speaking here as a believing Christian, of course. I'm not a believing Christian, but I think this is language far more attuned to the absolute degradation and destructiveness that torture always entails--and the practical absurdity of it--than these bureaucrats' memos. This sermon was dug up a few years ago by Scott Horton of Harper's; his essay on it is well worth reading:
It was delivered as his Easter Sunday sermon, which is important. Then as now, the Easter service drew the biggest crowd of the year. The Easter sermon was the minister’s minute in the spotlight—the moment when he would reach his greatest audience and make his reputation. And we know from John Donne’s correspondence, he was concerned about another audience: the king, his entourage and the courts. When Donne rose to deliver this sermon, torture was a heated “political” issue in England. Under the Stuart monarchs, the use of torture was viewed as a royal prerogative (how little things change). It was administered by judges, particularly by the national security court of seventeenth century England, the so-called Court of Star Chamber. John H. Langbein’s important book, Torture and the Law of Proof gives us very clear guidance into how torture was prescribed and used.
Over a series of centuries, the genius of the English law had been steadily to restrict and limit the use of torture, until at this point, under King James, it was controlled by the king’s judges and limited in practice through a series of special writs. Which is to say, legally it was far more constrained than it is today under an Executive Order issued by King James’s understudy in allegedly Divine Right governance, George W. Bush.
How little things change.